# Ajay Mishra v. Director General of Ordinanc e Services and another

- **Citation:** (2006) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-05
- **Case number:** Civil Misc. Writ Petition No. 17841 of 2002
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-mishra-v-director-general-of-ordinanc-e-services-and-another-40636
- **Pages:** 4

## Headnote

Sri B.N. Singh
Sri N.P. Shukla
Sri A.K. Singh
S.S.C.

(A)
Constitution
of
India
Art.-226validity of selection-challenged-by the
petitioner-who
participated
but
not
selected-No material placed that the
selection made against the statutory
provisions
or
against
law-held-once
participated-can
not
be
allowed
to
challenged.

Held: Para 16

Once the petitioner has appeared in the
selection, he cannot be allowed to
challenge the same after being declared
unsuccessful. No material has been
placed on record by the petitioner to
show that the selection is vitiated in law
either for violation of any statutory
provision or for any other reason.

(B)
Constitution
of
India
Art.-226Validity of Selection-challenged on the
ground
of
malafide-authorities
not
impleaded by name-Court can not look
into such issue.

Held: Para 11

It is a settled law where a mala fide is
alleged, the authority, who has passed
the order, which is said to be the result
of the mala fide exercise of power, has to
be
impleaded
eo
nominee.
In
the
absence of such impleadment, the Court
neither can look into the plea of mala
fide nor can consider the issue raising
mala fide.
Case law discussed:
1992 Supply (1) SCC-222
AIR 1996 SC-326
J.T. 1996 (8) SC-550
AIR 2003 SC-1344

## Text

1 All] Ajay Mishra V. Director General of Ordinanc e Services and another
1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 17841 of 2002

Ajay Mishra

...Petitioner
Versus
Director General of Ordinance Service
M.G.O. Branch (O.S.-8-C) Army Head
Quarter, D.H.Q. and another

 ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar
Sri Ranjit Asthana
Sri D.C. Tripathi
Sri Purnanad Misra (IN PERSON)
Sri Ajay Mishra (IN PERSON)
Sri Namwar Singh
Sri Sanjiv Singh
Sri Ranjit Saxena

Counsel for the Respondents:
Sri B.N. Singh
Sri N.P. Shukla
Sri A.K. Singh
S.S.C.

(A)
Constitution
of
India
Art.-226validity of selection-challenged-by the
petitioner-who
participated
but
not
selected-No material placed that the
selection made against the statutory
provisions
or
against
law-held-once
participated-can
not
be
allowed
to
challenged.

Held: Para 16

Once the petitioner has appeared in the
selection, he cannot be allowed to
challenge the same after being declared
unsuccessful. No material has been
placed on record by the petitioner to
show that the selection is vitiated in law
either for violation of any statutory
provision or for any other reason.

(B)
Constitution
of
India
Art.-226Validity of Selection-challenged on the
ground
of
malafide-authorities
not
impleaded by name-Court can not look
into such issue.

Held: Para 11

It is a settled law where a mala fide is
alleged, the authority, who has passed
the order, which is said to be the result
of the mala fide exercise of power, has to
be
impleaded
eo
nominee.
In
the
absence of such impleadment, the Court
neither can look into the plea of mala
fide nor can consider the issue raising
mala fide.
Case law discussed:
1992 Supply (1) SCC-222
AIR 1996 SC-326
J.T. 1996 (8) SC-550
AIR 2003 SC-1344

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for the
parties.
The
counter
and
rejoinder
affidavits have already been exchanged
and with the consent of the parties, the
writ petition being heard and decided
finally under the Rules of the court at the
admission stage.

2. The petitioner had challenged the
advertisements dated 23rd July 2001 and
30th January 2002, (Annexure No. 5 & 7).
However, a perusal of Annexure No. 5
shows that it is not an advertisement but
the order dated 23rd October 2001
rejecting the representation dated 30th July
2001 of the petitioner against the selection
held for the post of Messenger, in
pursuance to the advertisements dated 14th
February 2001 and 2nd June 2001.
Similarly Annexure No. 7 is the order
dated 30th January 2002, rejecting the
2 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
petitioner's representation against his
non-selection for the post of Messenger in
pursuance to the advertisements dated 2nd
June 2001 and 20th July 2001.

3. However, instead of dismissing
the petition on this ground alone, the court
has considered the grievances of the
petitioner on merits inspite of the
aforesaid defects in the relief sought in
the writ petition, which has not been
rectified or corrected by the petitioner.

4. The case of the petitioner is that
vide advertisement dated 14th February
2001, one post of Messenger was
advertised and on 2nd June 2001 two posts
of Messengers were advertised. It is
further alleged that the Respondent No. 2,
without making proper advertisement and
following proper procedure, appointed
illegally certain persons who are not
eligible, in a hurried manner. The
petitioner submitted that his mother made
a complaint against the corrupt practices
followed in making appointments, where
after the petitioner also preferred a Writ
Petition No. 27029 of 2001, challenging
the entire selection, but the writ petition
was dismissed vide judgment dated 25th
July 2001, with the observation that the
petitioner may make a comprehensive
representation before the Respondent No.
1, and the concerned authority was
directed to decide the same in accordance
with law.

5. The petitioner claims that he
made a representation in pursuance to the
said order on 3rd August 2001, which was
rejected, vide Annexure No. 5, which is
an order dated 23rd October 2001.
Similarly
in
respect
to
another
advertisement for six posts of Messengers
the petitioner approached this court in
Writ Petition No. 32001 of 2001, which
was also dismissed by the Hon'ble Court
vide judgment dated 8th October 2001,
with the observation permitting the
petitioner to make a representation which
was to be decided by a competent
authority in accordance with law. In
pursuance to the said direction the
petitioner made representation dated 19th
October 2001, which has been dismissed
by the authorities vide order dated 30th
January 2002.

6. The Contention of the learned
counsel for the petitioner is that in making
the aforesaid selection no procedure has
been followed and the entire selection is
illegal, arbitrary and suffers from corrupt
practices adopted by the respondents. It is
also submitted that the selection has been
finalized in a hurried manner, which
shows malafide involvement of the
respondent
and
vitiates
the
entire
selection.

7. Counter affidavit has been filed
on behalf of Respondent No. 1 & 2,
stating that one post of Messenger was
advertised on 14th February 2001, two
posts of Messengers were advertised on
2nd June 2001, and six posts were
advertised on 20th July 2001. A large
number of candidates appeared on 2nd
March
2001,
in
pursuance
to
the
advertisement dated 14th February 2001,
in which the name of the petitioner find
mention at Serial No. 161. However, in
the merit list the petitioner was placed at
Serial No. 33. It is stated that about 200
candidates in all had appeared in the
aforesaid selection and one Mohd. Ziya
Khan who obtained highest marks has
been appointed on the post of Messenger,
since there was only one vacancy.
1 All] Ajay Mishra V. Director General of Ordinanc e Services and another
3

8. In respect to the advertisement
dated 2nd June 2001, 205 candidates
appeared and the name of the petitioner
was at Serial No. 17 of the list of the
candidates who had applied in the said
selection. One Sharma Parveen secured
highest marks and she was appointed on
1st October 2001. The petitioner is at
Serial No. 17 in the reserved seat in
respect to the advertisement dated 20th
July 2001. It is stated that a screening test
was held wherein about 99 candidates
qualified but the petitioner could not
qualify, therefore, he was not called for
interview.
It
is
submitted
that
in
pursuance to the aforesaid selection also
the selected candidates have already been
appointed. It is further stated that on the
complaint made by the petitioner the
matter was examined again but nothing
illegal was found in the aforesaid
selection, hence the representation of the
petitioner were rejected.

9. Rejoinder affidavit has been filed
by the petitioner wherein the factum that
the petitioner appeared and participated in
all the selections as aforesaid has not been
denied but it is submitted that the
respondents have not filed documentary
evidence to show that such a large
number of candidates were interviewed,
although they ought to have filed the
documents.

10. The learned counsel for the
petitioner contended that since short time
was allowed to appear in the selection and
the selections have been finalized very
hurriedly, it shows that the entire
selection is malafide and vitiated. It is
also stated that the name of the petitioner
was also declared in the list of selected
candidates along with Shama Parveen, but
the petitioner has not been appointed and
only Shama Parveen has been appointed.
It is also submitted that respondents have
selected their own wards and children
and, therefore, the entire exercise is
biased and malafide.

11. It is a settled law where a mala
fide is alleged, the authority, who has
passed the order, which is said to be the
result of the mala fide exercise of power,
has to be impleaded eo nominee. In the
absence of such impleadment, the Court
neither can look into the plea of mala fide
nor can consider the issue raising mala
fide.

12. In State of Bihar Vs. P.P.
Sharma, 1992 Supp (1) SCC 222 in para
55 of the judgment, the Apex Court held
as under:-

"It is a settled law that the person
against whom mala fides or bias was
imputed should be impleaded eo nominee
as a party respondent to the proceedings
and given an opportunity to meet those
allegations. In his/her absence no enquiry
into those allegations would be made.
Otherwise it itself is violative of the
principles of natural justice as it amounts
to condemning a person without an
opportunity. Admittedly, both R.K. Singh
and G.N. Sharma were not impleaded. On
this ground alone the High Court should
have stopped enquiry into the allegation
of mala fides or bias alleged against
them.

13. In AIR 1996 Supreme Court
326, J.N. Banavalikar Vs. Municipal
Corporation of Delhi, in para 21 of the
judgment, it has been held as under:-

"Further
in
the
absence
of
impleadment of the .........the person who
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
had allegedly passed mala fide order in
order to favour such junior doctor, any
contention of mala fide action in fact i.e.
malice in fact should not be countenanced
by the Court."

14. In JT 1996 (8) SC 550, A.I.S.B.
Officers Federation and others Vs.
Union of India and others, in para 23,
the Hon'ble Apex Court has said where a
person, who has passed the order and
against whom the plea of mala fide has
been taken has not been impleaded, the
petitioner cannot be allowed to raise the
allegations of mala fide. The relevant
observation of the Apex Court relevant
are reproduced as under:-

"The person against whom mala
fides are alleged must be made a party to
the proceeding. Board of Directors of the
Bank sought to favour respondents 4 and
5 and, therefore, agreed to the proposal
put before it. Neither the Chairman nor
the Directors, who were present in the
said meeting, have been impleaded as
respondents. This being so the petitioners
cannot be allowed to raise the allegations
of mala fide, which allegations, in fact,
are without merit."

Recently in AIR 2003 Supreme
Court 1344, Federation of Railway
Officers Association Vs. Union of India
it has been held as under:

"That allegations regarding mala
fides cannot be vaguely made and it must
be specified and clear. In this context, the
concerned Minister who is stated to be
involved in the formation of new Zone at
Hazipur is not made a party who can meet
the allegations."

15. In the present case, the plea of
malafide has been raised without giving
the details or relevant material and
substantiating the same by furnishing the
relevant documents. In the absence of any
such material the said plea cannot be
looked into and has to be rejected.

16. The learned counsel for the
petitioner
further
submits
that
the
selection was held in a hurried manner.
However, it is not disputed that in all the
selections, a large number of candidates
appeared including the petitioner and
those who have been successful have been
appointed.
Once
the
petitioner
has
appeared in the selection, he cannot be
allowed to challenge the same after being
declared unsuccessful. No material has
been placed on record by the petitioner to
show that the selection is vitiated in law
either for violation of any statutory
provision or for any other reason.

17. In these circumstances, I do not
find any merit in the writ petition and it is
accordingly dismissed.

No order as to costs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2006

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 2766 of 2002

Ajay Kumar Kulshreshtha and others

...Petitioners
Versus
Director, Higher Education, U.P. and
others

...Respondents